The Netherlands’ supreme court has ruled that the state has ‘direct legal obligations’ to reduce carbon emissions by at least 25% by the end of 2020, compared to 1990 levels (Urgenda v The State of the Netherlands, 20 December 2019), following a detailed Advisory Opinion of the Attorney General and Procurator General.  An unprecedented victory for climate justice, the judgment nevertheless applied existing legal principles to the specific factual matrix concerning the Netherlands.

Urgenda, an environmental NGO, issued proceedings in 2013, as representative of 886 individuals, and in the collective interest of the Dutch population.  It claimed that constitutional norms, ECHR articles 2 (right to life), 8 (private and family rights) and 13 (right to an effective remedy), and tortious duties, interpreted consistently with international environmental law (IEL), and ‘soft law’ principles, obliged the state to reduce carbon emissions by 25% — 40% by 2020.

 The state accepted scientific consensus on anthropogenic climate change, necessitating emissions reductions to contain average temperature rises below 1.5–2°C.  However, it contested any legal obligation to achieve reductions within a given timeframe, not least because the ECHR does not oblige states to ‘provide protection against the real threat of dangerous climate change’.  The ECtHR has consistently rejected that the ECHR confers general rights to environmental protection (Kyrtatos v Greece; Fadeyeva v Russia).  IEL does not oblige states to reduce emissions by specified levels within a time-frame.  There is no universal right to a healthy environment under international human rights law.  The Netherlands’ constitution includes general duties ‘to keep the country habitable and improve the environment’ (article 21) and to promote health (article 22), which do not ground justiciable legal rights and obligations.

Nevertheless, the supreme court held that the state is responsible for excessive emissions, triggering positive emissions reduction obligations under ECHR articles 2 and 8.  Although ground-breaking, these conclusions are fundamentally premised on established ECHR principles.  First, environmental degradation from dangerous industrial activities can violate articles 2 and 8 (Őneryildiz v Turkey; López Ostra v Spain;Guerra v Italy).  Secondly, the state must ‘take appropriate steps to safeguard the lives of those within its jurisdiction’ (LCB v UK; Kiliç v Turkey).  Thirdly, a causal nexus between a ‘real and immediate threat’ to individual rights, may trigger states’ positive obligations to mitigate harm (the ‘Osman duty’: Osman v UK), including for longer-term risks (Őneryildiz v Turkey; Taşkın v Turkey).  Fourthly, positive obligations can extend to all community inhabitants (di Sarno v Italy; Cordella v Italy), if evidence shows a causal nexus between threats of harm and individual rights within the area.

The ECtHR has never held that concrete positive obligations to mitigate harm extend to an entire national population.  The Urgenda judgment, on this point, is unprecedented, and highly distinct, on the facts. Scientific consensus on climate change and its predicted impacts on low-lying Netherlands territory was sufficient evidence of ‘real and immediate threats’ to all citizens within the territorial jurisdiction.  Interpreting ECHR obligations consistently with EIL and the precautionary principle, required far-reaching emissions reductions, to mitigate against ‘tipping point’ dangers of rapid temperature rises.

The judgment will have far-reaching implications for existing and future generations, even though the ECHR itself does not protect collective, diffuse, or future rights, and restricts ECtHR standing to individual ‘victims’ (article 34).  The state accepted Urgenda’s legal standing in collective constitutional and domestic tortious claims, under Civil Code class action procedures, but challenged its standing to invoke ECHR rights, because it was not a ‘victim’.  Overruling the first instance judgment, the supreme court confirmed Dutch class action procedures do extend to ECHR claims before domestic courts; the victim test was only applicable before the ECtHR.  Thus, the judgment expands possibilities for strategic climate justice class actions before Dutch courts on human rights grounds, including, potentially, seeking damages for harm from excessive emissions.

The Urgenda judgment establishes important benchmarks for emissions reductions obligations, and interpretation of human rights norms consistently with IEL and ‘soft law’ principles.  Although specific to the Netherlands, it will undoubtedly influence similar pending claims elsewhere, notably Föreningen Greenpeace Norden v Government of Norway, Juliana v USA, Klimaatzaak v Belgium, and La Rose v HM The Queen.